In this July 1994 photo, Richard Lapointe is seated at MacDougall Correctional Institution in Suffield. The Connecticut Supreme Court has ordered a new trial for a Lapointe.

In this July 1994 photo, Richard Lapointe is seated at MacDougall Correctional Institution in Suffield. The Connecticut Supreme Court has ordered a new trial for a Lapointe. (Jim Michaud, AP Photo/Journal Inquirer)

Dissenting Justice in CT Supreme Court's Lapointe decision: “The rule of law has been damaged.“

HARTFORD — The typically cordial interplay among the state's Supreme Court justices flew out the window with its decision in the Richard Lapointe case Tuesday, with one dissenting justice accusing the majority of abandoning impartiality, violating the constitution, damaging the rule of law and jeopardizing confidence in the legal system.

In a stinging 25-page dissent, Justice Carmen E. Espinosa rebuked four of her colleagues, saying they transparently acted as advocates for Lapointe and contorted legal precedent to justify an outcome that might set him free.

"The majority's determination to ignore the rule of law today is driven by the result that it sought from the beginning, handing a get out of jail free card to a man who the majority apparently has become convinced is innocent," Espinosa wrote. "It constitutes unfettered judicial activism and reflects a complete misunderstanding of the proper role that this court should play within the rule of law."

Espinosa joined Justice Peter T. Zarella in a separate dissent. Both justices said the majority had overstepped its bounds by rejecting a lower court's findings on the credibility of witnesses during one of Lapointe's appeals.

Credibility is an issue typically reserved for trial judges who have the advantage of evaluating witnesses firsthand. But in the Lapointe decision, the majority held that an appeals court can rule anew on those aspects of credibility not related to a witness' in-court demeanor.

Zarella and Espinosa said that conclusion is at odds with more than a century of legal precedent by the court. "This contrived distinction appears nowhere in our law," they wrote.

But the sharpest language appeared in Espinosa's solo dissent.

"There is nothing in the majority's departure from the rule of law that is even remotely innocuous," she wrote. "By advocating on behalf of the petitioner, the majority appears to abandon any pretense of impartiality. The rule of law has been damaged by today's decision, which casts a cloud over the court, and it is reasonable to wonder if that cloud portends an approaching storm."

Espinosa accused the majority of establishing a "radical new" rule for appellate review, while pretending it had done nothing of the sort.

"This sleight of hand is reminiscent of the Wizard of Oz exhorting Dorothy to '[p]ay no attention to that man behind the curtain!' '' she wrote. "At that point in the movie, no child was fooled, and the majority should not even try to convince itself that the reader will be fooled by its shell game."

In a footnote to the majority opinion, Chief Justice Chase T. Rogers and Justices Richard N. Palmer, Dennis G. Eveleigh and Andrew J. McDonald fired back, writing that the principle that courts have an obligation to correct miscarriages of justice guided their decision to uphold the Appellate Court's decision favoring Lapointe.

"Justice Espinosa reaches a different conclusion, which, of course, is her right. Rather than support her opinion with legal analysis and authority, however, she chooses, for reasons we cannot fathom, to dress her argument in language so derisive that it is unbefitting an opinion of this state's highest court," they wrote. "We will not respond in kind to Justice Espinosa's offensive accusations; we are content, instead, to rely on the merits of our analysis of the issues presented by this appeal. Unfortunately, in taking a different path, Justice Espinosa dishonors this court."

But Espinosa maintained it was the majority that had harmed the court and its principles, and said the Lapointe decision followed an earlier ruling that dangerously expanded the authority of appeals courts — and with it, the unchecked power of the Supreme Court.

"We have done damage to the rule of law, which we have a duty to protect," she wrote. "At this point, we have a choice: Shall we crown ourselves as philosopher-kings or resume our proper role as servants of the law?"